By Dr. Ken Broda-Bahm:
Though Denver is still encased in snow, youth soccer season is just around the corner, and soon I'll be watching my daughter and her teammates chase the ball around the field. At this age (six), they're not yet playing positions, so one common bit of advice from their coach is this: "When you have the ball, take it to the goal! Don't dribble it around and don't play 'keep away' with the other team. Instead, take it to the goal every time." I was reminded of that advice recently while watching mock trial presentations from a closed-circuit room. "That is why the point where valuations apply has to be after and not before the deductions and discounts," the presenting attorney concluded. The attorney's face held the triumphant look of one who had just put the final point on a long and undeniable argument. But watching all the mock jurors on split screen, I saw a wall of blank faces, as if one collective "So what?" was rising up from the group.
This can be a common occurrence and it reflects a common liability for the legal advocate. The important gap between you and your fact finders is not a gap in intelligence, nor even a gap in the ability to understand each point as it comes along. Instead, the important gap is one of perceived relevance: The knowledgeable and experienced advocate is so much more likely to see the "why this matters" part of the argument that they're too frequently tempted to just leave it out. That is why the reminder for pint-sized soccer stars is also a good reminder for trial lawyers: Take it all the way to the goal, every chance you get. Legal advocates should make their argument clear and explicit, not simply through the most controversial points, but all the way to the part that conveys "...so that is why we win." This advice applies not only to jury persuasion, but also -- and perhaps especially -- to the more involved claims presented to the bench, either orally or through briefs. It's easy advice to understand, but also easy advice to forget. So in this post, I'll be sharing three practical tools lawyers can use to make sure they're making complete arguments and taking it to the goal every time.